Protecting Ecosystems by Way of Biological Control: Cursory Reflections on the Main Regulatory Instruments for Biological Control Agents, Present and Future

Although there are numerous threats to ecosystems and the resultant ecosystem services, alien and invasive plants (AIP) have been identified as being one of the major causes of ecosystem destruction. In addressing the threat of alien and invasive plants through the use of various mechanisms, the regulatory framework imposed by legislation is key in ensuring that that controlling AIPs does in fact not do more harm than good. One such control mechanism, which has the potential to do wonders or wreak havoc if not adroitly implemented, is that of using biological control agents. This contribution provides a brief overview on the three main regulatory instruments used to control biological control agents in South Africa, namely the Conservation of Agricultural Resources Act 43 of 1983, the Agricultural Pests Act 36 of 1983 and the National Environmental Management: Biodiversity Act 10 of 2004. It also considers possible future developments on the regulation of biological control agents.


Introduction
The preceding years have seen an increase in the attention afforded to ecosystems and ecosystem services. Although there are numerous threats to ecosystems and the resultant ecosystem services, alien and invasive plants (AIPs) have been identified as being one of the major causes of ecosystem destruction. In addressing the threat of alien and invasive plants 1 through the use of various mechanisms, the regulatory framework imposed by legislation is key in ensuring that controlling AIPs 2 does not in fact do more harm than good. One such control mechanism, which has the potential to do wonders or wreak havoc if not adroitly implemented, is the use of biological control agents. This note will attempt to provide a brief overview of the three main instruments used to regulate biological control agents in South Africa,  National Environmental Management: Biodiversity Act 10 of 2004 (NEM:BA) defines an alien species as "a species that is not an indigenous species; or an indigenous species translocated" or "intended to be translocated to a place outside its natural distribution range in nature, but not an indigenous species that has extended its natural distribution range by natural means of migration or dispersal without human intervention". The NEM:BA further defines an invasive species as "any species whose establishment and spread outside of its natural distribution range -(a) threatens ecosystems, habitats or other species or has demonstrable potential to threaten ecosystems, habitats or other species; and (b) may result in economic or environmental harm or harm to human health". See McNeely "Invasive Species". This note will focus on the use of Alien and Invasive Species (AIS), for the control of Alien and Invasive Plants (AIP). For the purposes of this note AISs are meant to mean any alien animals, insects or pathogens. 2 For the purpose of this note, Alien and Invasive Species (AIS) will be seen as Alien Invader Plants (AIPs). ecosystem services. 9 These studies have found that biodiversity, ecosystems and ecosystem services are under great threat. 10 Alien and invasive plant species were introduced into South Africa more than 1 000 years ago via trading routes from other countries in southern Africa. Since the arrival of settlers from Europe these numbers have increased dramatically. 11 At present, AIPs have established on approximately 10 million hectares in South Africa and it is reported that AIPs consume nearly 330 million meters3 of water annually, or 7% of the annual run-off. 12 Water consumption levels by AIPs are estimated to be increasing rapidly and could reach 50% of the mean annual run-off in the not too distant future. 13 The aggressive behaviour of the AIPs in their unnatural habitat is a direct threat to the vast wealth of biodiversity in South Africa.14 South Africa is a relatively small country that comprises only 2% of the total surface of the Earth, but it contains 10% of the plant species, 7% of the vertebrates, and is home to three biodiversity hotspots. 15 9 Egoh et al 2012 Ecosystem Services 71. 10 European Commission 2009 ec.europa.eu. It is projected that 60% of coral reefs may disappear by 2030. A total of 11% of natural habitat could be lost by 2050. Furthermore, human activities have accelerated the rate of the extinction of species by 50 -1 000 times in the past 100 years. 11 McNeely "Invasive Species". 12 ICT Update 2005 ictupdate.cta.int. Both the National Biodiversity Strategy and Action Plan (Department of Environmental Affairs and Tourism National Biodiversity Strategy) as well as the National Biodiversity Framework (GNR 813 in GG 32474 of 3 August 2009) state that woody invasive species, such as the Eucalyptus tree from Australia, use excessively more water than indigenous woody plants, causing disruption in terrestrial and freshwater ecosystems. 13 Van Wilgen et al "Preliminary Assessment" 819-822.
14 Brooks et al 2004 BioScience 680. Not only do alien and invasive plants pose threats to the species richness of native ecosystems, they also change the bio-fuel properties of the ecosystem, which in turn affects the fire regime characteristics including the frequency, intensity, extent, type and seasonality of fires. Other threats listed by The Water Page (The Water Page 2012 www.thewaterpage.com) that AIPs pose to ecosystems and ecosystem services are the loss of potentially productive land and the loss of grazing potential and livestock production. AIPs reduce the ability to harvest indigenous natural resources, increases the problems associated with flooding, cause erosion, cause the destruction of rivers, cause the siltation of dams and estuaries, create poor water quality and ultimately cause the extinction of indigenous plants and animals. The legal framework for using biological control agents The use of biological control agents in the combating of AIPs in itself often entails the introduction of AISs into an ecosystem. In understanding the legal framework applicable to the use of biological control agents such as AISs to combat AIPs, this note will focus predominantly on three pieces of legislation, namely the CARA, the NEM:BA, and the APA. The note will be structured around the following discussions, namely the legal requirements for the control of AISs and AIPs and specific regulatory measures for biological control agents as a method of control for AIPs, before finally reflecting on the challenges and possible future challenges. 24 21 Moran, Hoffmann and Zimmerman 2005 Frontiers of Ecology and Environment 77-83; Simberloff and Stiling 1996 Biological Conservation highlight the risks associated with the release of biological control agents. One such risk is that the biological control agent introduced may not be host specific and may attack native non-target species. 22 Zimmerman and Moran 1991 Agriculture, Ecosystems and Environment 29-35. The cochineal insect, Dactylopius opuntiae (Cockerell), was introduced into South Africa to assist in the control of the prickly pear Optunia ficus-indica (L.) Miller, which infested approximately 1 million hectares. The cochineal insect reduced the infestation of the prickly pear to less than 100 000 ha. 23 Moran, Hoffmann and Zimmerman 2005 Frontiers of Ecology and Environment 77-83. 24 The authors recognise that the legal framework governing alien and invasive species is complex and multi-faceted. Governance is further fragmented between National, Provincial and Local Government spheres and amongst several government departments within the same sphere. The purpose of this note is not to provide an in-depth discussion of this legal framework, but rather to provide a cursory reflection on the main tenets of the framework as it regulates the introduction of biological control agents. Acts not discussed in this note which form part of the legal framework regulating alien and invasive species include inter alia the National Water Act 36 of 1998, the National Forests Act 84 of 1998 and the National Veld and Forest Fire Act 101 of 1989. A comprehensive and exhaustive discussion on the legal framework regulating alien and invasive species is adroitly provided by AR Paterson. Refer to Paterson 2006 PER 152-207.  CARA defines a "weed" as being: "any kind of plant which has under section 2(3) been declared a weed, and includes the seed of such plant and any vegetative part of such plant which reproduces itself asexually". An invader plant is defined as being "a kind of plant which has under section 2(3) been declared an invader plant, and includes the seed of such plant and any vegetative part of such plant which reproduces itself asexually". Section 2(3) of CARA states that the minister may by regulation declare any plant to be a weed or an invader plant for the purposes of this Act, either throughout the Republic or in one or more areas therein. It is contended that the lack of a substantive definition of "weedv and "invader plantv has led to some invading alien plants as being categorised differently in some of the provinces. An example is the Silver Wattle (Acacia dealbata), which is classified as being a category 1 plant in the Western Cape, but a category 2 plant in the rest of the country.

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In terms of reg 15A(1) of CARA, category 1 plants may not occur on any land or inland water surface other than in biological control reserves. Reg 15A(2) states that a land user shall control any category 1 plants that occur on any land or inland water surface by means of the methods prescribed in reg 15E. No person shall, except in or for purposes of a biological control reserveestablish, plant, maintain, multiply or propagate category 1 plants; import or sell propagating material of category 1 plants or any category 1 plants; acquire propagating material of category 1 plants or any category 1 plants. In terms of reg 15B(1) category 2 plants may not occur on any land or inland water surface other than a demarcated area or a biological control reserve. The executive officer may on application in writing demarcate an area as an area where category 2 plants may occur, be established and be maintained. Furthermore an area in respect of which a water use licence for stream flow reduction activities has been issued in terms of s 36 of the National Water Act 36 of 1998 shall be deemed to be a demarcated area. Reg 15B (2)  is the inclusion of regulation 15E(5), which dictates that any action taken to control category 1, 2 and 3 plants shall be executed with caution and in a manner that will cause the least possible damage to the environment. This implied duty of care is binding on any landowner undertaking control measures.
The APA which has as its main aim the prevention and combating of agricultural pests contains several provisions relating to the importation of controlled goods into the country. 29 Although not making direct reference to AISs and AIPs, the APA regulates the importation of alien and potentially invasive plants, pathogens and shall only be imported or sold in accordance with the provisions of the Plant Improvement Act, 1976(Act No. 53 of 1976, the Agricultural Pests Act, 1983 (Act No. 36 of 1983) and the environment conservation regulations. A land user shall control any category 2 plants that occur on any land or inland water surface in contravention of the provisions of sub-regulation (1) by means of the methods prescribed in regulation 15E. Unless authorised thereto in terms of the National Water Act 36 of 1998, no land user shall allow category 2 plants to occur within 30 meters of the 1:50 year flood line of a river, stream, spring, natural channel in which water flows regularly or intermittently, lake, dam or wetland. The executive officer may, on good cause shown in writing by the land user, grant written exemption from compliance with one or more of the requirements of sub-regulations (1), (3), (5), (6), (8) and (9) on such conditions as the executive officer may determine in each case. Category 3 plants are dealt with by reg 15C which dictates that Category 3 plants shall not occur on any land or inland water surface other than in a biological control reserve. Reg 15(C)3 dictates that no land user shall allow category 3 plants to occur within 30 meters of the 1:50 year flood line of a river, stream, spring, natural channel in which water flows regularly or intermittently, lake, dam or wetland. Furthermore a land user must take all reasonable steps to curtail the spreading of propagating material of category 3 plants. Reg 15C(4) states that no person shall, except in or for the purposes of a biological control reserve (a) plant, establish, maintain, multiply or propagate category 3 plants; (b) import or sell propagating material of category 3 plants or any category 3 plants; or (c) acquire propagating material of category 3 plants or any category 3 plants. Like the regulations pertaining to category 2 plants, reg 15C(5) provides that the executive officer may, on good cause shown in writing by the land user, grant written exemption from compliance with one or more of the requirements of sub-regulations (1), (3) and (4) on such conditions as the executive officer may determine in each case. 28 Methods of control as listed in reg 15E(1) include inter alia: uprooting, felling, cutting or burning; Biological Control Agents; treatment with a weed killer that is registered for use in connection with such plants in accordance with the directions for the use of such a weed killer; biological control carried out in accordance with the stipulations of the APA, the Environment Conservation Act 73 of 1989 and any other applicable legislation; any other method of treatment recognised by the executive officer that has as its object the control of the plants concerned, subject to the provisions of sub-regulation (4); a combination of one or more of the methods prescribed in paragraphs (a), (b), (c), and (d) save that biological control reserves and areas where biological control agents are effective shall not be disturbed by other control methods to the extent that the agents are destroyed or become ineffective. 29 In terms of s 3(1)(a)-(b), no person shall import into the republic any plant, pathogen, insect, exotic animal, growth medium, infectious thing, honey, beeswax or used apiary equipment or anything determined by the Minister by notice in the gazette except on the authority of a permit.
insects, with the Department of Agriculture, Forestry and Fisheries (DAFF) being responsible for the implementation of both CARA and the APA.
NEM:BA arguably contains the most substantive provisions relating to AIPs and AISs.
Chapter 5 of NEM:BA deals specifically with species and organisms posing potential threats to biodiversity. NEM:BA chapter 5 makes a distinction between "alien species" 30 and "invasive species" 31 with differing levels of regulation for each.
Through the workings of NEM:BA, alien species are regulated via three main mechanisms as provided by the Act. These are briefly: (a) The issuing of a permit should a person wish to undertake a certain defined restricted activity regarding a specimen of alien and invasive species. 32 Such a permit may be issued only after a prescribed assessment of the risks and potential impacts on biodiversity is carried out. NEM:BA furthermore affords for the Minister to publish a list of alien species in respect of which restricted activities are prohibited. (b) NEM:BA also contains a duty of care applicable to any person who wishes to undertake a restricted activity involving any alien species, whether they are so permitted or not. 33 This duty of care dictates that persons undertaking restricted activities must do so in accordance with the permit as issued for such a restricted activity, 34 and that they must take all the steps required to prevent or minimise harm to biodiversity. 35 (c) Section 69 continues to provide the competent authority with powers to issue directives should a person fail to comply with the provision of the duty of care. 36 Should such a person fail to comply with a directive, the competent authority may take the requisite 30 NEM:BA in section 1 defines an alien species as being: (a) a species that is not an indigenous species; or (b) an indigenous species translocated or intended to be translocated to a place outside its natural distribution range in nature, but not an indigenous species that has extended its natural distribution range by natural means of migration or dispersal without human intervention. 31 NEM:BA in section 1 defines an invasive species as being any species whose establishment and spread outside of its natural distribution range-(a) threatens ecosystems, habitats or other species or has the demonstrable potential to threaten ecosystems, habitats or other species; and (b) may result in economic or environmental harm or harm to human health. The duty of care as it pertains to invasive species appears to be more comprehensive than that applying to alien species. S 73(2) of NEM:BA requires that a person who is the owner of land on which a listed invasive species occurs must notify the relevant competent authority, in writing, of the listed invasive species occurring on the land. Such a landowner must furthermore take steps to eradicate the listed invasive species and to prevent it from spreading, and must take all the steps required to prevent or minimise harm to biodiversity. 42 Section 75 (1)-(5) of NEM:BA sates the following: Control and eradication of a listed invasive species must be carried out by means of methods that are appropriate for the species concerned and the environment in which it occurs. action taken to control and eradicate a listed invasive species must be executed in a manner that may cause the least possible harm to biodiversity and damage to the environment. This provision thus places a duty on persons implementing control methods to ensure that such methods will not have a more detrimental impact on the environment than the invasive species which is to be eradicated. The issuing of permits by the relevant authorities to persons wishing to undertake restricted activities is subject to the correct procedures being followed by the applicant to assess the risk and potential impacts of the restricted activity, that the relevant species has been found to have negligible or no invasive potential, that the benefits of allowing the activity to continue are greater than the potential costs associated with preventing or remedying any resultant damage to the environment or biodiversity, and lastly that the relevant authority is satisfied that adequate measures have been taken by the applicant to prevent the spread of the alien or invasive species. 43 Paterson contends, however, that no clear guidelines are prescribed as to what may constitute adequate procedures or measures as they relate to the content of section 91 of NEM:BA discussed above, and that one would hope to see a prescription of the detail by way of regulation. 44 Such detail has been provided by way of draft regulations, but these are not yet enforceable. This, combined with the fact that NEM:BA provides very little guidance on the duty of care, the actual control methods to be adopted for the management of alien and invasive species, as well as the exact procedures to be followed when undertaking a restricted activity, may result in many questions being left unanswered.
As alluded to above, many of the more detailed provisions relating to Alien and Invasive species as contained in NEM:BA may be found in the Draft Alien and Any action taken to control and eradicate a listed invasive species must be executed with caution and in a manner that may cause the least possible harm to biodiversity and damage to the environment. The methods employed to control and eradicate a listed invasive species must also be directed at the offspring, propagating material and re-growth of such invasive species in order to prevent such species from producing offspring, forming seed, regenerating or re-establishing itself in any manner. The Minister must ensure the coordination and implementation of programmes for the prevention, control or eradication of invasive species. The Minister may establish an entity consisting of public servants to coordinate and implement programmes for the prevention, control or eradication of invasive species. Regulation 22(1)(a)-(c) of the Draft Alien and Invasive Species Regulations states that in addition to those activities defined in NEM:BA as being restricted activities, the following activities are prescribed as restricted activities: allowing any specimen of an alien or listed invasive species to grow, breed or multiply; allowing the movement or spread of a specimen of an alien or listed invasive species; and releasing a specimen of an alien or listed species. 53 Regulation 24(1)-(3) of the Draft Alien and Invasive Species Regulations states the following: A person may not import into the republic a specimen of any species, including exempted species, unless authorised to do so by a permit. A person may furthermore not release a specimen of a new alien species imported in the Republic in terms of reg 24(1) unless authorised to do so by a permit. Any application for importation of a specimen of a species into the Republic shall require the written consent of the Head of Department of the province to which the specimen is to be transported or in which it is to be released.
Regulation 25 allows for certain species to be exempt from permitting should a restricted activity be undertaken with that particular species. 54 This exemption is not applicable, however, in so far as the activity with the species relates to any of those listed in regulation 24 as discussed above. 55 Regulation 26 confirms that no person may import or undertake any other restricted activity involving a species which is deemed to be a prohibited alien. Such a species may, however, be imported for biocontrol purposes pursuant to regulation 62, which is discussed below. 56 Regulation 27 deals with species requiring compulsory control, and states that no person may undertake a restricted activity as listed, involving a specimen which is found in List 3 as an invasive species, thus effectively excluding such species from being used as possible biological control agents. 57 Regulation 27(2) states further that any person who has under his or her control such a specimen requiring compulsory control and for which no permit has been issued is bound to notify a competent authority of such an occurrence in writing. The workings of regulation 62 as discussed below, however, allow for a relaxation in these provisions in so far as regulation 62 deals with specimens being used under the auspices of biological control.
Regulation 28 contains the provisions relating to invasive species that are controlled by invasive species management programmes, and sets out a range of restricted activities relating to invasive species as contained in list 3. These restricted activities include inter alia activities relating to the importing, buying, conveying, selling and receiving of such species. 58 Regulation 29 contains similar provisions regarding restricted activities in so far as they relate to listed invasive species as controlled by 54 Regulation 25 (1)  Regulation 27(1)(a)-(i) of the Draft Alien and Invasive Species Regulations states that a person may not, without a permit, undertake any of the following restricted activities involving a specimen of a species listed in List 3 as an invasive species requiring compulsory control: importing a specimen into the Republic, including introducing it from the sea; possessing or exercising physical control over a specimen; growing a specimen, or allowing it to grow, breed or multiply; breeding or in any other way propagating a specimen or causing it to multiply; conveying, moving or otherwise translocating a specimen; selling or otherwise trading in, giving, donating or disposing of a specimen; buying, receiving, accepting as a gift, or in any way acquiring a specimen; or conducting any other activity prescribed in reg 23 or 24 involving a specimen. 58 Regulation 28(1)(a)-(g) of the Draft Alien and Invasive Species Regulations. area, 59 whilst regulation 31 lists restricted activities that may not be undertaken with listed species as controlled by an activity. 60 Regulations 28, 29 and 31 allow for the restricted activities to be conducted without a permit in certain circumstances. An indepth discussion of these regulations would be trite given the focus of the note and the workings of regulation 62 as discussed below, which allows for certain restricted activities to be undertaken notwithstanding the provisions of regulations 28, 29 and 30 for the purposes of biological control agents.
Chapter 6 of the regulations deals with risk assessments pertaining to AIS.
Regulation 35 dictates inter alia in sub regulation (d) that a risk assessment must be undertaken prior to issuing a permit to undertake any other restricted activity involving a specimen of a listed invasive species other than those listed in regulation 35(1). 61 The general requirements for risk assessments to be conducted in accordance with the regulations are contained in regulation 36, which states that a risk assessment must consist of 62 an initial risk assessment 63 and, if the initial risk assessment does not clearly demonstrate that there would be no significant risk of invasion by the species to which the application relates, a comprehensive risk assessment. 64 Furthermore the draft regulations provide for a framework with which all risk assessments must comply. 65 Regulation 37 deals specifically with risk assessments for import permits, and sets out the relevant factors that such an assessment must consider. Any person wanting to import any species as contemplated in regulation 24 would have to comply with these provisions. 66 Such a risk assessment must consider the provisions contained in regulation 37 (1) introduced to the republic and the risk that the method by which the specimen is to be introduced or the restricted activity carried out could serve as the pathway through which other specimens might be introduced.
Regulation 38(1) sets out the requirements as they relates to the risk assessment framework, and requires that the Institute 67 within one year of the date, on which the regulations come into effect, is to develop and publish guidelines for carrying out the risk assessment. However, pending the publication of the guidelines, regulation 38 (2) defines the minimum considerations to be included in a risk assessment.
These requirements can be broadly listed as being the disclosure of information The regulations proceed to set out the requirements for a risk assessment facilitator 78 as well as the costs associated with risk assessments 79 and the format of the risk assessment reports. 80 The requirements for a risk assessment facilitator are a commendable measure and will hopefully bring uniformity and consistency to the practice of risk assessment.
A brief overview of the regulatory provisions pertaining to AISs and AIPs as contained within the CARA, APA and NEM:BA has been provided in the above discussion. As it is presumed that almost all biological control agents are alien species, such a discussion is warranted so as to gain an oversight of the regulation legislation is the permitting of certain activities relating to AISs and AIPs, with CARA, the APA and NEM:BA making provision for such permits to be issued in certain circumstances. It must also be noted that both CARA and NEM:BA provide for the relaxation of regulation in so far as certain activities relate to the biological control agents or biological control reserves, whilst a common inclusion in both the CARA and NEM:BA is the duty of care in general relating to AISs and AIPs, which also applies to the introduction and use of biological control agents. The above discussion should serve to highlight some of the more pertinent provisions relating to the regulation of alien and invasive species, and should thus provide an overview of the broader regulatory framework as it applies to biological control agents in so far as they are alien species. The likelihood of any biological control agent being released should it be deemed to be invasive is very low, but the provisions relating to invasive species were discussed for the sake of completeness.
The focus of this note being upon the regulatory framework as applicable to biological control agents, the discussion will now turn to the legal provisions as contained within the above, relating specifically to the introduction and use of biological agents in the control of AIPs.

Legal provisions relating to biological control in combating AIPs
Although the introduction of biological control agents is often tantamount to the introduction of alien species, and thus by implication subject to the general legislative provisions relating to AISs, specific mention is also made in the legislation to biological control agents. Regulation 15D(2)(a)-(c) of the Conservation of Agricultural Resources Regulations states that the executive officer shall designate an area as a biological control reserve only if -the area concerned is used for the breeding of biological control agents by a biological control expert; and no other measures that may destroy or render the biological control ineffective are applied in that area; and the area concerned serves as a refuge from where biological control agents can move or be distributed to other infestations of category 1, 2 and 3 plants. 83 Biological control is defined as being "the use of natural enemies of category 1, 2 and 3 plants to control such plants". A vbiological control agent" means a natural enemy of category 1, 2 or 3 plants that is used to control such plants; "biological control expert" means an academic or research institute or an academic or research organisation established by legislation which, or a person associated with or in the employment of such an institute or organisation who, practises and researches biological control of category 1, 2 and 3 plants. 84 Other methods of control as listed in reg 15E(1) of the Conservation of Agricultural Resources Regulations include inter alia: Uprooting, felling, cutting or burning; treatment with a weed killer that is registered for use in connection with such plants in accordance with the directions for the use of such a weed killer; biological control carried out in accordance with the stipulations of the APA, the Environment Conservation Act 73 of 1989) and any other applicable legislation; any other method of treatment recognised by the executive officer that has as its object the control of the plants concerned, subject to the provisions of sub-regulation (4); a combination of one or more of the methods prescribed in paragraphs ( or listed invasive species, as described above. Any person thus wanting to introduce bio-control agents which are deemed to be alien or invasive will thus be subject to these requirements. As stated in the previous section, permits for the import of any alien species, such as biological control agents, must be obtained from DEA. It must be remembered that this permit is required in addition to the permit required under the APA and issued by DAFF. Before issuing the permit, NEM:BA requires that the "correct procedure" be followed. The procedure for risk assessment, of course, is set out in a more substantive manner in the draft alien and invasive species regulations.

It is contended by Klein et al that is expected to see the promulgated Alien and
Invasive Species Regulations calling for an initial risk assessment before the importation of the biological control agent, with a more comprehensive risk assessment being conducted before its release from quarantine. 90 The Draft Alien and Invasive Species Regulations provide an insight into the proposed risk assessment procedure for the importation of alien species in the Republic through the workings of regulations 37 and 38, as discussed above. 89 The main tenets of AIS and AIP regulation are contained within Chapter 5 of NEM:BA, despite the fact that certain indirect provisions contained elsewhere in the Act make indirect provision for the regulation of AISs and AIPs and by implication to the introduction of biological control agents. Some of these provisions include inter alia those relating to biodiversity planning as contained in Chapter 3 part i and ii of NEM:BA. Specifically the provisions of reg 50 come to mind, especially those dealing with research, which state that in subsection (1)The minister must promote research done by the Institute and other institutions on biodiversity conservation including the sustainable use, protection and conservation of indigenous biological resources. In accordance with s 50(2) such research may include research inter alia on threatening processes or activities likely to impact on biodiversity conservation. It may be argued that research into biological control and the release of such biological control agents may be construed to be a threat, and therefore subject to further regulation. Chapter 4, which deals with threatened or protected ecosystems, makes provision for threatening processes in listed ecosystems, whereby the minister may by notice in the Gazette identify any process or activity in a listed ecosystem as a threatening processes. It might be argued that the provision of s 53(1) might apply to the release of biological control agents within a listed ecosystem, such a release being construed to be a potentially threatening process. If the release of a biological control agent in a listed ecosystem were to be regarded as a threatening process it would be necessary for an Environmental Impact Assessment ( a signatory, relating to the import and release of biological control. The issuing authority must furthermore ensure compliance with the technical advice to the Register of Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947 where biological control agents are used inadvertently as bio-pesticides for commercial use. Last the issuing authority must determine mechanisms to ensure compliance with conditions for the prevention of escape by specimens and procedures to be followed in the event of an escape. 99 Regulation 62(1)(c) of the Draft Alien and Invasive Species Regulations.

Concluding remarks on the challenges relating to the regulation of biological control agents
This note has attempted to provide a brief overview of the two main legislative mechanisms regulating the use of bio-control agents in South Africa. Although the authors recognise the wider legal framework applicable to alien and invasive species, and by implication biological control agents, the note has focused specifically on the provisions of CARA, the APA, NEM:BA and the still Draft Alien and Invasive Species Regulations, in an attempt to distil the more pertinent regulatory provisions relating to the use of biological control agents. In the absence of the substantive provisions to be provided by the Draft Regulations, once they are promulgated, any prospective user of biological control agents will be subject to the workings of CARA and its relevant regulations pertaining to alien and invasive species, the APA, and chapter 5 of NEM:BA. Apart from the APA, these provisions provide no substantive guidance as to how biological control agents should be controlled, but provide indirect guidance through the regulations pertaining to the categories of alien and invasive species and the exclusions allowed for bio control reserves. Although the APA does contain more detail, the lack of a written protocol as to what exactly is required to be proven in each case presented for a specific biological control agent may be grounds for inconsistency in the consideration and approval of such applications. The NEM:BA provides for several indirect provisions relating to biological control agents, but these provisions lack the regulatory substance that is required, a situation that will remain If the introduction or spread of alien and invasive plants can be curtailed by biological control agents that do not cause harm to the environment or ecosystems, they may actually be regarded as providing an ecosystem service. The introduction of any such biological control agent will, however, have to be strictly regulated.